RULE 12.1. NOTICE OF ALIBI DEFENSE
(a) Notice by Defendant. A defendant who intends to offer
evidence of an
alibi defense ,
within the time provided for the making of pretrial motions or at any time thereafter as the
court directs, shall must serve written notice upon on
the prosecuting attorney of that
intention any intended alibi defense and file the notice within the time
provided for the
making of pretrial motions or afterward as the court directs. The notice must state:
the each specific place or places at
which where the defendant claims to have been at
the time of the alleged offense; and
(2) the name
s and, address es, and
telephone number, if any, of each of the witness es upon
on whom the defendant intends to rely to establish the alibi.
(b) Notice by
the Prosecuting Attorney.
(1) Disclosure. If the defendant serves a Rule 12.1(a) notice, the prosecuting attorney
disclose in writing to the
Within ten days thereafter, but in no event less than ten
trial, unless the court directs otherwise, the prosecuting attorney shall serve upon the
defendant or the defendant's attorney:
a written notice stating the name s,
and address es, and telephone number, if any, of
those upon whom each witness the prosecution intends to rely
on to establish defendant's
presence at the scene of the alleged offense; and shall file the notice
(B) each prosecution rebuttal witness to the defendant's alibi defense.
(2) Time to Disclose. Unless the court directs otherwise, the prosecuting attorney must give its Rule 12.1(b)(1) disclosure within 10 days after the defendant serves notice of an intended alibi defense under Rule 12.1(a), but no later than 10 days before trial.
Failure to comply. Upon failure of either party to comply with the requirements
rule the court may exclude the testimony of any witness offered by that party as to the
defendant's absence from, or presence at, the scene of the alleged offense. This rule does not
limit the right of the defendant to testify.
(d) Continuing Duty to Disclose. Both the defendant and the
attorney are under a continuing duty to must promptly disclose
in writing to the other party
the name s, and address es, and
telephone number, if any, of each of additional witness es
(1) the disclosing party learns of the witness before or during trial; and
(2) the witness should have been disclosed under Rule 12.1(a) or (b) if the disclosing party had known of the witness earlier.
which come to the attention of either party subsequent to their having been given
pursuant to the requirements of this rule.
ed) Exceptions. For good cause shown, the
court may grant an exception to any of the
requirements of this rule requirement of Rule 12.1(a) - (c)
(e) Failure to Comply. If a party fails to comply with this rule, the court may exclude the testimony of any undisclosed witness regarding the defendant's alibi. This rule does not limit the defendant's right to testify.
(f) Inadmissibility of Withdrawn Alibi. Evidence of an intention to rely
upon on an alibi
defense, later withdrawn, or of a statement s made in connection with
that intention, is not,
in any civil or criminal proceeding, admissible against the person who gave notice of the
Rule 12.1 was amended, effective, January 1, 1980; January 1, 1988; March 1, 1990; March 1, 2006.
The original Rule 12.1 was is an adaptation of
the proposed amendments to Fed.R.Crim.P.
12.1 (52 F.R.D. 432 (1971)) with changes to conform to the style as established
in the North
Dakota Rules of Criminal Procedure.
This rule Rule 12.1 was amended, effective January 1, 1988, to
conform to the language
style of the 1985 amendment to Fed.R.Crim.P. 12.1. Subdivisions (a), (b) and (c) were
amended, effective March 1, 1990. The amendments are technical in nature and no
substantive change is intended.
Rule 12.1 was amended, effective March 1, 2006, in response to the December 1, 2002, revision of the Federal Rules of Criminal Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Provision for notice of alibi to be given to the prosecuting attorney by the defendant in a
criminal case was passed by the Legislature at the 1969 session as N.D.C.C. § 29-14-28.
The provisions of Rule 12.1 changed and broadened these
provisions , by requiring the
prosecution to initiate the notice provisions, by including notice by the prosecuting attorney
of any witnesses the prosecuting attorney may have to rebut the alibi testimony and by
imposing to provide a continuing duty of disclosure on the part
of both the prosecution and
By amendment effective January 1, 1980, the initial burden
is again upon
was placed on
the defendant to raise the defense of alibi. This is accomplished done
by serving written
notice upon the prosecuting attorney within a specified time and filing the notice. The notice
must list specific places and names of alibi witnesses as required by subdivision (a). Within
the time specified, the prosecuting attorney must respond by serving written notice of the
names of the prosecuting attorney's witnesses placing defendant at the location of the
offense. Failure to comply with the notice requirements may result in exclusion of testimony
on this issue by witnesses for the noncomplying party.
Subdivision (f) provides for the inadmissibility of a withdrawn alibi or statements made in connection with it, in any proceeding.
The Advisory Committee Note to the Proposed Amendments to the Federal Rules
1971) concerning the validity and constitutionality of an alibi notice rule is as follows:
"Proposed rule 12.1 is new. It is based upon present rule 87 of the United States
Court Rules for the District of Columbia with changes designed to bring it into style
conformity with the criminal rules and to make explicit that each party is under a continuing
duty to give notice of additional witnesses which come to his attention between the time
notice is originally given and the time at which the testimony is offered at the trial.
"Doubts about the constitutionality of a notice-of-alibi rule were to some extent
by Williams v. Florida, 399 U.S. 78 (1970). In that case the court sustained the
constitutionality of the Florida notice-of-alibi statute, but left unresolved two important
(1) The court said that it was not holding that a notice-of-alibi requirement was
conditions where a defendant does not enjoy 'reciprocal discovery against the State.' 399
U.S. at 82 n. 11. Under the proposed revision of rule 16 (Preliminary Draft of Proposed
Amendments, January 1970) the defendant is entitled to substantially enlarged discovery in
federal cases, and it would seem appropriate to conclude that, if the revisions of rule 16 are
adopted, the federal rules will comply with the 'reciprocal discovery' qualification of the
(2) The court said that it did not consider the question of the 'validity of the
sanction, had petitioner chosen not to comply with the notice-of-alibi rule.' 399 U.S. at 83
n. 14. This issue remains unresolved. Proposed rule 12.1 provides that the court 'shall
exclude the testimony of any witness' whose name has not been disclosed pursuant to the
requirements of the rule. The defendant may, however, testify. Prohibiting from testifying
a witness whose name was not disclosed is a common provision in state statutes. See
Epstein, supra (Advance Notice of Alibi, 55 J.Crim.L.C. & P.S. 29), at 35 (1964). It is
generally assumed that the sanction is essential if the notice-of-alibi rule is to have practical
significance. See Epstein, supra, at 36.
"The Supreme Court of Illinois recently upheld an Illinois statute which requires a
defendant to give notice of his alibi witnesses although the prosecution is not required to
disclose its alibi rebuttal witness. People v. Holiday, 8 Cr. L. 2238 (Jan. 13, 1971) (265
N.E.2d 634 (Ill. 1970)). Because the defense complied with the requirement, the court did
not have to consider the propriety of penalizing noncompliance.
"The requirement of notice of alibi seems to be an increasingly common
state criminal procedure."
SOURCES: Joint Procedure Committee Minutes of January 27-28, 2005, pages 6-8;
20, 1989, page 4; December 3, 1987, page 15; January 23, 1986, page 7; January 25-26,
1979, pages 2-3; December 7-8, 1978, pages 30-32; October 12-13, 1978, page 2; April 24-26,
1973, page 9; May 11-12, 1972, pages 13-14;
Fed.R.Crim.P., Proposed Amendment,
Preliminary Draft, 52 F.R.D. 432 (1971); Fed.R.Crim.P. 12.1.
SUPERSEDED: N.D.C.C. § 29-14-28.